Ng Shui on v. Wong Tsuing Ming and Another

HCA010098/1982

BETWEEN

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Coram: Deputy Judge Leonard in Court

Date of hearing: 6 May 1985

Date of delivery of Judgment: 31 May 1985

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JUDGMENT

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1. In this action the writ was issued out of the Supreme Court Registry on the 28th of October 1982 and its validity was extended for a period of one year under an order made by Master Hanson on the 11th of November 1983, pursuant to R.S.C. 0.6 r.8.

2. In the Statement of Claim, the Plaintiff alleges that the Defendants are joint proprietors of a firm of which he was an employee on the 19th of January 1981 when he was engaged in work as an operator of a plastic injection moulding machine. At about 4.00 p.m. on that day, the Plaintiff was operating the machine, which was moulding parts for toy helicopters. In one operating sequence, the movable mould platen opened but the item which had been moulded failed to drop off. The Plaintiff reached into the machine to remove the piece of work when the platen suddenly and without warning closed on and crushed his left hand. The injury eventually resulted in the amputation of the Plaintiff's hand and part of his forearm.

3. The Plaintiff claimed damages against both Defendants for breach of statutory duty and/or negligence.

4. The writ was duly served on the second named Defendant on the 19th of November 1982 and, since he did not give notice of intention to defend, interlocutory judgment was entered against him on the 17th of December 1982, with damages to be assessed and costs.

5. The Legal Advisers of the Plaintiff had difficulty in finding the first named Defendant but in due course the writ was served on him and he filed an acknowledgement of service with notice of intention to contest the proceedings on the 8th of October 1984. On the 16th of October 1984 he filed a defence denying that the Plaintiff was employed by him at the time of the accident. There was no denial in that defence of the remainder of the Plaintiff's allegations. By virtue of O.18 r. 13(1) R.S.C the allegations of fact in the Plaintiff's pleading which were not traversed in the defence were deemed to be admitted except insofar as they were allegations of damage or the amount of damages (O.18 r.13(4) R.S.C.).

6. The case was put in the running list and came on for hearing on the 6th May 1985. The Plaintiff and his legal advisers appeared but the Defendants were absent. I heard evidence which satisfied me that in an attempt to notify the Defendants of the date of hearing, an employee of the Legal Aid Department had gone to the address shown on the acknowledgement of service filed by the first named Defendant only to find that he had long ago departed from the address and that his present whereabouts are unknown. A visit to the last known residential address of the second named Defendant revealed that he had sold the premises and departed, his present whereabouts being unknown to the occupant. A visit to the registered place of business of the Defendants, where the accident had taken place, revealed that the business had been closed down and nobody in the vicinity knew where the Defendants had gone. In the circumstances, the Defendants having taken no steps to keep the Court or the Plaintiff informed of an address for service, I decided to proceed with the trial. At first sight it appears that notice was required to be given by the Plaintiff to the Defendants by virtue of O.34 r.8(1) R.S.C., but having regard to the wording of the order I was of the opinion that it applied to fixture list cases whereas this case came from the running list, It did not appear to me to be in the interests of justice to adjourn the hearing in exercise of the power contained in O.35 r.3. The Defendants appear to have decided to ignore the proceedings and there was no point in saddling the Plaintiff with further costs as a result of an adjournment. I bore in mind the fact that the Defendants have a right to apply to have any judgment against them set aside. Since the hearing, I have learned that Mantell, J. reached a similar conclusion in High Court Action No. 9964 of 1982, LI Yee-yuen v. LAM Wing-Keung & Anor.

7. So far as liability was concerned, the only issue was whether at the material time the first Defendant was an employer of the Plaintiff.

8. There was evidence in the form of a certified copy of an application for registration of the business, dated 11th June 1980, in which the first and second Defendants were shown as partners in the Wai Hing Industrial Co.. If there is evidence that a partnership has come into existence, it will be deemed to have containued unless the contrary is proved - Brown v. Wren Bros (1985) 1QB 390.

9. The Plaintiff gave evidence that when he worked at the factory, the first named Defendant was there every day "doing calculations" and was referred to by the Plaintiff's uncle, who introduced him there, as the boss.

10. The allegation in the defence of the first named Defendant that he had ceased to be a partner at the material time was unsupported by evidence. In the circumstances I had no hesitation in holding that he was the Plaintiff's employer at the time of the accident. The claims of negligence and breach of statutory duty not being denied, I gave judgment for the Plaintiff on the issue of liability.

Damages

11. According to the medical reports before the Court, the Plaintiff was admitted to Queen Elizabeth Hospital on the 20th January 1981 with a crushed left hand. An emergency operation was done in an attempt to repair the damage but gangrene set in and on 10th February 1981 there was an amputation about 6½inches below the elbow. The Plaintiff told that part of the story in more detail when he gave evidence and I had no reason to disbelieve him. He said that there were four operations altogether. First the thumb and one finger were amputated. Next another finger plus part of another one were removed. In the third operation, part of the hand went. Finally there was a decision to amputate at the wrist but that was not considered enough so the final amputation was done.

12. The Plaintiff, while in hospital for a total of three and a half months, suffered pain, for which he had injections. He needed sleeping pills.

13. Dr. Wedderburn was under the impression that the Plaintiff was right-handed and approached the assessment of disability on the basis that the unpreferred arm was affected. It became evident during the hearing that there must have been a difficulty in communication between the Plaintiff and the doctor, because the Plaintiff maintained that he had always been left-handed. I accepted his evidence as to that.

14. According to Dr. Wedderburn's report, "an amputation of the arm with a functional below the elbow is a 90% impairment of the arm and a 54% impairment of the whole man "where the preferred arm is affected. In the case of an unpreferred arm, the impairment of the whole man is 50%. I have adopted the figure of 54%.

15. The measurement from the elbow to the margin of the stump is 5½inches and to the end of the stump, 6½inches. There is adequate soft tissue cover over the bone and the scar is very neat.

16. The Plaintiff suffers some phantom limb symptoms which acts as an irritant rather than a serious side effect.

17. Before the accident, the Plaintiff played ballgames, such as bowling, table tennis and basketball but can do so no longer.

18. According to Dr. Wedderburn, the Plaintiff has been fitted with two prostheses, one an artificial arm, the other a hook device. He does use them, though Dr. Wedderburn says that not more than 593 of men, supplied with either type of prosthesis, persevere with their use. Pain Suffering and Loss of Amenity

19. Counsel for the Plaintiff referred me to a number of awards.

20. In WONG Pui-kwan v. Artking Industries Ltd. High Court Action No. 11212 of 1985, the Plaintiff aged 33 suffered a crushed right hand, that being the preferred hand. After three operations he had very little left of his hand, losing the thumb and all fingers save for "substantial remnants" of thumb and fifth finger. Damages for pain, suffering and loss of amenities were assessed by a Master at $125,000, on 31st December 1984.

21. In TANG Pui-wah v. YIU Yat-fan High Court Action 4500 of 1984, severe crushing injuries of the Plaintiff's right hand and forearm left his right hand with only two bones, the fourth and fifth metacarpals, with only the ring and fifth finger remaining, the condition being almost equivalent to an amputation at mid-hand, a 54% impairment of the whole man.  Damages for pain, suffering and loss of amenities were assessed by a Master at $132,000, on 28th March 1985.

22. In LAM Yuen v. WAI Kit High Court Action No. 7602 of 1982 where there was amputation of the right, preferred hand, and part of the forearm to within four inches of the elbow, damages for pain, suffering and loss of amenities were assessed at $135,000 on 16th December 1983.

23. The present case is strikingly similar to that of LAM Yuen, and in accordance with the guidance to be derived from LEE Ting-lam v. LEUNG Kam-ming (1980) H.K.L.R, 657, I would put the injury under consideration into the middle of the "substantial injury" category. As a result of the decision in LI Ping-sum v. CHAN Wai-tong & Others Civil Appeal 53 of 1983, the figures set out in LEE Ting-lam were increased by 50% to take account of inflation, so that appropriate awards for the "substantial injury" category were to be increased from a range of between $80,000 and $100,000 to a range of between $120,000 and $150,000. LI Ping-sum was decided in October 1983 and the award in LAM Yuen was made two months later. Allowing for subsequent inflation, I award $145,000.

Loss of Earnings from Accident to Trial

24. Mr. Pedruco for the Plaintiff invited me to calculate the pre-trial net loss of earnings by finding an average monthly rate of pay over the pre-trial period, multiplying it by the number of months in that period and deducting sums actually earned. The monthly rate at the time of the accident, taking into account The usual bonus at Chinese New Year, is ($1,400 x 13) ? = $1,516. The current rate of pay is unknown. The business has closed down and statistics published by the Census and Statistics Department only go up to June 1984 when the average daily basic wage was $88 or $2,288 for a 26 day month. Extrapolating from that, taking a 10% figure for inflation, Mr. Pedruco suggests that the figure for May 1985 should be ($88 + $8.8) x 26 = $2,516. He has evidently assumed that the published figures take a Chinese New Year bonus into account. Thus according to Mr. Pedruco, the average monthly pay can be calculated as follows: $1,516 + $2,516 = $4,032? = $2,016.

25. I have calculated the average monthly rate by starting with $1,516 per month and assuming a conventional 10% increase per annum, as follows:

26. This figure divided by 52 (months) gives a monthly average of $1,794. It is true to say, however, that 10% appears to be an unrealistic figure for wage inflation, according to the published tables, which show an increase in the year from March 1983 from $71 to $85, or 19.7%. Between March and June 1984, the annual rate of increase appears to have been 14%, according to the tables. Taking these matters into account, I have adopted a figure of $1,900 per month as the estimated average monthly wage since January 1981. The period from accident to trial was approximately 51½months. The gross loss of earnings was therefore $1,900 x 51?= $97,850.

27. The Plaintiff found it very difficult to find and stay in work until June 1984 when he managed to find a humble job at $1,100 per month as a Toilet Cleaner. He has stayed in that job and I attribute his long periods of unemployment to genuine difficulties caused by his injury. He did manage to find some work and earned some money as follows:

Future Loss of Earnings

28. Mr. Pedruco's multiplicand was $2,516 - $1,100 = $1,416. The Plaintiff had only worked in the trade for eight days before the accident and there is some uncertainty as to what his future would have been. Current rates of pay are the subject of guesswork. I have selected a multiplicand of $2,300 - $1,100 = $1,200. The Plaintiff is 29 years old and a suitable multiplier is 15. $1,200 x 12 x 15 = $216,000, which I award for future loss of earnings.

Special Damage

29. The only claim was for travel expenses.

30. I award the following:

Summary

31. The total award is thus:

General Damages

Special Damages

32. There will be interest on the amount of special damages at 7% per annum from the date of the accident until judgment. There will be interest on the sum awarded for pain suffering and loss of amenities at 2% per annum from the 19th of November 1982 until judgment.

33. Credit must be given for the sum of $89,631 already received by the Plaintiff under the Employees' Compensation Ordinance.

34. There will be an order for the payment of the Plaintiff's costs by the Defendants to be taxed if not agreed in accordance with the Legal Aid Regulations and for the Plaintiff's own costs to be taxed in accordance with the Legal Aid Regulations.

Representation:

Mr. Luiz A. Da Silva Pedruco instructed by Director of Legal Aid for the Plaintiff.

Defendants acting in person - absent.